Interesting Rule 11 / Incorrect Allegation Question in One of the Sean Combs Civil Cases

Can plaintiffs be sanctioned because they "refused to voluntarily dismiss [a defendant] after reviewing the additional information from his cell phone and bank records" that seems to exonerate him?

From yesterday's notice in Parham v. Combs from Judge Rita Lin (N.D. Cal.):

The Court requests that the parties be prepared to provide their views on the following at the hearing on Defendant Drew Desbordes' motion for sanctions, set for July 8, 2025, at 10:00 a.m., in Courtroom 15 at the San Francisco Courthouse:

Having considered the motion for sanctions and associated evidence, the Court is tentatively of the view that Plaintiffs' allegations pertaining to Desbordes now lack a factual basis. From Desbordes' phone and bank records, it appears virtually certain that he was in Georgia, not in Orinda, California, at the time of the alleged assault in March 2018.

However, when Plaintiffs added Desbordes to this lawsuit, there did appear to be a reasonable factual basis to name him. Before Plaintiffs sued Desbordes, two individuals—Jane Doe and John Doe—contacted Ms. Mitchell, offering to provide information related to the case. The individuals informed Ms. Mitchell that Desbordes was present at the time of the assault. To confirm this fact, Ms. Mitchell presented Plaintiff Parham with a "photo lineup," during which Parham identified Desbordes as one of the individuals who participated in the alleged assault. Parham did not know the other two individuals or communicate with them prior to her identification.

Even if Desbordes' participation is inconsistent with Parham's initial reports concerning the alleged assault, Plaintiffs identify plausible reasons why Parham may have been initially hesitant to name all of her alleged attackers. If the Court were to conclude that a reasonable and competent inquiry occurred prior to including Desbordes in the amended complaint, does Desbordes nonetheless contend that sanctions can still be issued under Rule 11 based on the fact that Plaintiffs refused to voluntarily dismiss Desbordes after reviewing the additional information from his cell phone and bank records? If so, what Ninth Circuit case law supports that view, given that Rule 11 requires only that counsel certify the reasonableness of papers as of the time of the filing and does not impose a continuing obligation to correct previous filings that have since turned out to be incorrect?

After addressing the above questions at the hearing, each side will have an opportunity to present additional argument that they wish the Court to hear. The parties shall not file written responses to this Notice of Questions.

Comments

[John F. Carr]

There is also 28 USC 1927: "Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct."

[SMc]

In Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 874 (5th Cir.1988), the en banc Fifth Circuit said that Rule 11 has a "snapshot" principle that focuses upon the instant when the picture is taken—when the signature is placed on the document. But Rule 11 was later amended to provide that “later advocating” a baseless position is a ground for sanctions. The question thus becomes whether refusing to voluntarily dismiss is "later advocating" a factually baseless position. Perhaps not, but responding to a summary judgment motion on factual grounds would become difficult, if not impossible, if there really were no factual support for a claim, and responding to the summary judgment motion would be "later advocating." Moreover, as the earlier comment notes, section 1927 could bite the attorney who forces the exercise of the defendant preparing a summary judgment motion.

[ReaderY]

While phone records may well prove when and where someone’s phone was used, it is not clear to me that they provide conclusive proof, at any rate not conclusive enough to justify Rule 11 sanctions, as to who was using it.

An alibi constructed by getting a third party to use ones phone somewhere else strikes me as not all that difficult to do.

Just because technology is considered cool doesn’t mean courts have to treat it like divine revelation.

[darkknight9]

"An alibi constructed by getting a third party to use ones phone somewhere else strikes me as not all that difficult to do."

Using their credit card in public places with cameras might be a different story. What do the bank records show and would a simple inquiry showing photo/video evidence be enough for rule 11?

[darkknight9]

I do like the emphatic "shall not" for written responses.

"I've read enough of this sh!t, don't make me read anymore!"

😀

Pretending is fun.